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 Bailiff  v  R  [2011] ACTCA 7 (25 February 2011)

Last Updated: 9 March 2011

ALEXANDER MARCEL ANDRE SEBASTIAN BARKER  BAILIFF  v THE QUEEN [2011] ACTCA 7 (25 February 2011)

APPEAL – appeal as to the finding of the appellant’s fitness to plead – whether the primary judge erred in her consideration of the criteria she was required to take into account in deciding whether the appellant was fit to plead to the charge – held that there was no appealable error in the approach of the primary judge – appeal dismissed

Crimes Act 1900 (ACT) s 311, s 312
Evidence Act 1995 (Cth) s 52

 R  v  Bailiff  [2010] ACTSC 54
 R  v  Bailiff  [2004] ACTSC 42
 R  v Dashwood [1943] KB 1
 R  v Steurer (2009) 3 ACTLR 272
Evans v The Queen [2007] HCA 59; (2007) 82 ALJR 250
 R  v Presser [1958] VicRp 9; [1958] VR 45
Murphy and Murdoch v The Queen [1989] HCA 28; (1989) 167 CLR 94

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 29 of 2010
No. SCC 139 of 2009

Judges: Marshall J, Nield and Teague AJJ
Court of Appeal of the Australian Capital Territory
Date: 25 February 2011
IN THE SUPREME COURT OF THE ) No. ACTCA 29 of 2010
) No. SCC 139 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ALEXANDER MARCEL ANDRE SEBASTIAN BARKER  BAILIFF 

Appellant

AND: THE QUEEN

Respondent

ORDER

Judges: Marshall J, Nield and Teague AJJ
Date: 25 February 2011
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 29 of 2010
) No. SCC 139 of 2009
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ALEXANDER MARCEL ANDRE SEBASTIAN BARKER  BAILIFF 

Appellant

AND: THE QUEEN

Respondent

Judges: Marshall J, Nield and Teague AJJ
Date: 25 February 2011
Place: Canberra

REASONS FOR JUDGMENT

THE COURT:
1. This proceeding concerns a challenge to the finding of a single judge of the Court below (“the primary judge”) that Mr  Bailiff  is fit to plead to a charge laid against him. At the commencement of the oral hearing, counsel were agreed that there was doubt as to whether leave to appeal was required to be given for this Court to consider the appeal. The approach commended to the Court by both counsel, and adopted by it, was to grant leave to appeal in case such leave were required and deal with the matter of the appeal substantively. Accordingly, we granted leave to appeal and heard the appeal on 18 February 2011.
2. Mr  Bailiff  has been charged with one count of intentionally damaging property on 30 January 2009. The Crown alleges that Mr  Bailiff  dropped a large rock on the front windscreen of a vehicle used by Mr Gerald Franks and subsequently dropped the rock on the rear windscreen of that vehicle. Damage occurred to each windscreen. The offence is alleged to have occurred in circumstances involving a heated discussion between Mr  Bailiff  and Mr Franks which occurred outside a building managed by Mr Franks on behalf of the Canberra Men’s Centre.
3. On 2 April 2009 Mr  Bailiff  was committed to stand trial in the Supreme Court of the Australian Capital Territory on the charge of intentionally causing damage to property. The Supreme Court ordered Mr  Bailiff ’s examination by a psychiatrist to consider the question of Mr  Bailiff ’s fitness to plead to the charge. On 14 September 2009 the determination of “whether the person is fit to plead to the charge” came before the primary judge. On 21 June 2010 the primary judge found that Mr  Bailiff  was fit to plead to the charge; see  R  v  Bailiff  [2010] ACTSC 54.Mr  Bailiff  now appeals from her Honour’s order and judgment giving effect to that finding.
4. The issues for determination on the appeal concern whether the primary judge erred in her consideration of the criteria she was required to take into account in deciding whether Mr  Bailiff  was fit to plead to the charge. It is also necessary to consider whether, in examining those criteria, the primary judge was entitled to take into account the behaviour of Mr  Bailiff  in court during the proceeding.
The legislative context
5. Under s 312 of the Crimes Act 1900 (ACT) (“the Act”), a person is presumed to be fit to plead. This is a rebuttable presumption which may be displaced if it is established on an investigation under Div 13.2 of Pt 13 of the Act that the person is unfit to plead. Whether a person is fit to plead is a question of fact to be determined, after such an investigation, on the balance of probabilities without any persuasive onus resting on any party.
6. Section 311 of the Act sets out when a person will be considered to be unfit to plead to a charge. Sub-sect 311(1) requires that the person’s mental processes are disordered or impaired to the extent that the person cannot –
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) give instructions to the person’s lawyer.
The inquiry/investigation
7. The inquiry or investigation (as it is alternatively described in Div 13.2) is not a usual “lis inter partes” but a process under which, as s 315A says, the Court may call evidence on its own initiative and require the person charged to be examined medically, with the results of the examination put before the Court. The process is an inquisitorial proceeding. In a civil setting, a comparison may be made with the trade union election inquiry provisions found in the Fair Work Act 2009 (Cth), and its predecessors.
The evidence below
8. The material before the primary judge consisted of:
• reports authored by Dr G J George, a consultant psychiatrist with ACT Health addressed to the ACT Mental Health Tribunal (“the Tribunal”) and dated:
(i) 29 May 2008;
(ii) 29 May 2006; and
(iii) 23 July 2004;
• a report by Ray Lynes and Cinzia Gagliardi (an Intern Psychologist and Senior Clinical Psychologist, respectively) from ACT Health addressed to the Tribunal, dated 17 June 2005;
• a report by Ray Lynes and Keith Smith (Senior Forensic and Clinical Psychologist) from ACT Health addressed to the Tribunal, dated 11 November 2004;
• a judgment of Crispin J in  R  v  Bailiff  [2004] ACTSC 42 in a special hearing conducted under s 315 of the Act after the Tribunal had determined that Mr  Bailiff  was not fit to plead to the charge he then faced, being one of assault;
• a report of Dr Lambeth (forensic psychiatrist) and Ms Short (psychologist) to the ACT Civil and Administration Tribunal (“ACAT”), dated 22 May 2009;
• a report of Dr George to the ACT Magistrates Court dated 7 August 2009;
• a statement of facts concerning the current charge, prepared by the informant, Brendan James Aitchinson of Woden Police Station;
• the oral evidence of Dr Lambeth;
• a Guardianship order made in respect of Mr  Bailiff .
Mr  Bailiff ’s behaviour during the investigation
9. The primary judge not only considered the written and oral evidence given in the investigation but also took account of Mr  Bailiff ’s behaviour during the hearing; see the judgment below at [47]. In so doing, her Honour relied on the judgment in  R  v Dashwood [1943] KB 1 at 4. Her Honour relied on Dashwood for the proposition that information raising a question about an accused’s fitness to plead may be accepted from any source. The primary judge referred to her prior acceptance of Dashwood to that effect in  R  v Steurer (2009) 3 ACTLR 272 at [21].
10. Issues arise on the appeal concerning whether, in taking into account Mr  Bailiff ’s behaviour in court, her Honour:
• drew conclusions from that behaviour that were not open to be drawn;
• drew conclusions before taking an intermediate step to require additional expert opinion.
11. These are issues to which we return in dealing with the appeal points raised by counsel for Mr  Bailiff , Mr Gill. However we now consider the issue raised by Mr Gill that her Honour was not entitled to consider the interjections made by his client before the primary judge.
12. Mr Gill challenges the primary judge’s ability (for which we read “power”) to draw conclusions from Mr  Bailiff ’s outbursts or interjections in Court. Counsel referred to s 52 of the Evidence Act 1995 (Cth) in support of the proposition that the interjections could not be taken into account as they were not evidence.
13. The primary judge said she was entitled to take the behaviour of Mr  Bailiff  in Court into account. In support of that view her Honour cited Dashwood at 4, where the Criminal Court of Appeal in the United Kingdom said, in the context of a fitness to plead issue:
It does not matter whether the information comes to the court from the defendant himself or his advisers or the prosecution or an independent person such as, for instance, the medical officer of the prison...
14. Section 52 of the Evidence Act provides that:
This Act (other than this Part) does not affect the operation of any Australian rule or law of practice so far as it permits evidence or documents being tendered in evidence.

15. Nothing in s 52 of the Evidence Act prohibits a court, in the course of an investigation or inquiry undertaken such as the one undertaken by the primary judge, from taking into account what the court observes about the behaviour of a party. It was recognised, in Evans v The Queen [2007] HCA 59; (2007) 82 ALJR 250 at [21], per Gummow and Hayne JJ, that a tribunal of fact in a personal injuries matter is entitled to make its own observations about the extent of a plaintiff’s injuries based on the appearance of the plaintiff.
16. As emphasised at [13] above, the proceeding before her Honour was not the usual adversarial proceeding, such as a personal injury trial, but an inquiry or investigation. In the course of the inquiry, her Honour was entitled to be inquisitive. We consider that her Honour did not err in taking into account the demeanour of Mr  Bailiff  in court and the outbursts or interjections made by him and his interactions with his counsel. If it is appropriate to take into account one’s observations as a judge in a personal injuries trial about a person, it is even more appropriate to do so in the case of an investigation or inquiry.
The criteria under s 311(1)
(a) Whether Mr  Bailiff  understands the nature of the charge
17. At [53], the primary judge said she was satisfied that Mr  Bailiff  has an “entirely adequate understanding of the nature of the charge against him”. No issue is raised on appeal about her Honour’s state of satisfaction as to this criterion. We need say no more about it.
(b) Whether Mr  Bailiff ’s mental processes are disordered or impaired to the extent that he cannot enter a plea to the charge and exercise the right to challenge jurors or the jury.
18. No issue is taken on appeal with her Honour’s consideration about Mr  Bailiff ’s ability to enter a plea. However, counsel for Mr  Bailiff , Mr Gill, contends that the primary judge erred in her view, expressed at [61], that Mr  Bailiff  could exercise his right to challenge a jury “as effectively as any other accused person relying on his or her own instincts, assumptions and possibly stereotypical views of the world.”
19. We shall come, later in these reasons, to deal with the challenge to this aspect of her Honour’s reasons for judgment.
(c) Whether Mr  Bailiff  can understand that the proceeding (in respect of the charge) is an inquiry about whether he committed the offence of damage property
20. At [64], the primary judge said:
...I have no doubt that he would have a proper understanding of the nature of the proceedings.
21. No issue is taken on appeal as to the correctness of that approach. We need say no more about it.
(d) Whether Mr  Bailiff ’s mental processes are so disordered or impaired to the extent that he cannot follow the course of the proceeding
22. At [67], the primary judge said:
...s 311(1)(d) seems to me to refer to the accused’s ability to understand in general terms the sequence of events in the trial, and the purpose of the procedures being followed or on the material being dealt with at each stage in the trial.
23. In so doing, her Honour relied on the judgment of Smith J in  R  v Presser [1958] VicRp 9; [1958] VR 45 at 48, where his Honour said:
He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all various court formalities.
24. It is not in contest that the provisions of s 311 were, in large part, based on the views expressed in Presser by Smith J about the criteria for fitness to plead to a criminal charge.
25. The primary judge considered at [70] that she had:
....no reason to find that Mr  Bailiff  would not be able to follow the course of any proceedings relating to the charge he is facing.
26. The appeal grounds put in issue her Honour’s consideration of this criterion. Mr Gill submits that her Honour misconstrued what is meant in s 311 of the Act by “cannot follow the course of the proceedings”. We shall later return to that issue.
(e) Whether Mr  Bailiff  can understand the substantial effect of any evidence that may be given in support of the prosecution
27. Her Honour said, in reference to this criterion, and taking into account comments made by Mr  Bailiff  by way of interjection that, at [78]:
I would not be willing to find him unfit to plead by reference to this criterion without far more specific evidence of his inability to understand the substantial effect of the prosecution evidence.
28. Mr Gill challenges this finding in the grounds of appeal. He contends that her Honour misconstrued the test of “cannot understand the substantial effect of any evidence that may be given in support of the prosecution.” We shall return to that issue.
(f) Whether Mr  Bailiff  can give instructions to his lawyer
29. At [84], her Honour held that she had no reason to find that s 311(1)(f) was satisfied. The primary judge took into account her observations of Mr  Bailiff ’s interactions with his counsel before her.
30. Mr Gill also challenges this finding and submits that her Honour misconstrued the test of “cannot give instructions to the person’s lawyer”. We shall also return to this issue.
The right to challenge jurors issue: s 311(1)(b)
31. Mr Gill submits that her Honour should have found that Mr  Bailiff  was unable, due to mental disorder or impairment, to challenge a juror peremptorily or for cause.
32. Her Honour’s judgment, where it deals with this issue, appears to focus on an accused’s right to peremptory challenge. However, the evidence before her on the issue of challenging a jury, from Dr Lambeth, did not differentiate between the concepts of challenging for cause and a peremptory challenge. The evidence of Dr Lambeth on this issue included the general concept of “rationally challenging a juror” which includes the narrower concept of challenging for cause. Indeed as counsel for the respondent, Mr Doig, submits, the primary judge was not asked to differentiate between the two types of challenges.
33. The primary judge was entitled to form the view, on the evidence before her, that Mr  Bailiff  was able to exercise his right to challenge jurors peremptorily or for cause. As noted by Mason CJ and Toohey J in Murphy and Murdoch v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 103-104, successful challenges of jurors based on cause are exceptional.
“Cannot follow the course of the proceedings”: s311(1)(d)
34. At [67], the primary judge considered that s 311(1)(d) of the Act concerns the ability of the accused to understand generally the sequence of events in the trial and the purpose of the procedure applied or the material being dealt with during the trial as it progresses.
35. Mr Gill’s attack of this part of the judgment below stems from his submission that her Honour drew conclusions from Mr  Bailiff ’s behaviour in court that were either:
• not open to be drawn, or
• required an intermediate step of the application of expert evidence.
36. The primary judge dealt with the s 311(1)(d) issue at [65] to [70] of her reasons for judgment. At [67] her Honour referred to a passage from Presser at 48 where Smith J said:
He (the accused) needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities.
37. The primary judge then referred to Mr  Bailiff ’s tendency to interrupt the proceeding before her in a deliberate way. However, her Honour observed from those interruptions or interjections that:
...Mr  Bailiff  was paying close attention to the proceedings and identifying in a deliberate, even calculating way the point at which to interrupt for maximum effect.
38. Mr Gill contends that the selection by her Honour of Mr  Bailiff ’s outbursts is selective and that by examining them across the entire proceeding it can seem that he had “a continual misunderstanding of the proceedings”. That submission is not accepted. The primary judge was ideally placed to observe Mr  Bailiff  and consider whether his conduct demonstrated that he was able to follow the course of the proceedings.
39. We also see no reason why her Honour was required to call further medical expert evidence herself (as she was entitled to do by Pt 13.2 of Div 13). The rationality or otherwise of Mr  Bailiff ’s interjections was a matter which her Honour was ideally placed to consider in combination with the expert evidence which was before her.
40. Being entitled to take Mr  Bailiff ’s behaviour into account, we consider that the primary judge was under no obligation to call any further medical evidence before deciding the s 311(1)(d) issue. Her Honour had ample medical evidence before her already. We also reject the submission that her Honour’s reliance on certain interjections was selective. The one cited at [69] in her Honour’s reasons is only offered as an example. The opening part of the first sentence at [69] refers to “interruptions at the hearing”. The remainder of that paragraph includes the observation that those interruptions:
Repeatedly demonstrated that Mr  Bailiff  was paying close attention to the proceedings and identifying in a deliberate, even calculating, way the point at which to interrupt for maximum effect.
41. We reject the challenge to her Honour’s consideration of s 311(1)(d) and consider that the primary judge was entitled to form the view that Mr  Bailiff  would be able to follow the course of any proceedings relating to the charge he faces.
Understanding evidence in support of prosecution: s 311(1)(e)
42. Mr Gill also challenged her Honour’s finding that Mr  Bailiff  would be able to understand the substantial effect of any evidence that may be given in support of the prosecution. Again, in coming to her conclusion on this aspect of the matter, her Honour took into account some interjections made by Mr  Bailiff  before her. The primary judge’s considerations of those interjections does not show any misunderstanding or misapplication of the test to be considered under s 311(1)(e) of the Act. None of the other passages from the transcript reveal any other interjections from Mr  Bailiff which show anything to the contrary. This aspect of the challenge to the judgment below also fails.
Instructions to Counsel: s 311(1)(f) ground
43. At [81] of her Honour’s reasons for judgment, the primary judge relied on her observations of Mr  Bailiff ’s interactions with his counsel. The primary judge observed that Mr  Bailiff ’s instructions and the method of his giving them would be frustrating for his counsel, but at [84] could find no reason why he would not be able to give instructions “to the standard required for s 311(1)(f).”
44. One must focus on the test s 311(1)(f). It is that the person’s mental processes are so disordered or impaired that the person cannot give instructions to the person’s lawyer. The primary judge observed Mr  Bailiff  giving instructions to his counsel in the proceeding before her. She was best placed to consider the test posed by s 311(1)(f) and her assessment is to be accorded considerable weight. We see nothing in the submission raised by Mr Gill to cause us to come to any different view from the primary judge. We are satisfied that her Honour’s conclusion on this issue was open to her and that she was ideally placed to make that assessment. We see no appealable error in her approach to this issue.
Conclusion and order
45. Having regard to the foregoing we order that the appeal is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 25 February 2011

Counsel for the Appellant: Mr S Gill
Solicitor for the Appellant: Kamy Saeedi Lawyers
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 18 February 2011
Date of judgment: 25 February 2011